College Professor (Emeritus, City University of N.Y),psychologist, journalist.

Legal Issues in Self-Publishing: What Authors Need to Know

12/24/2012 07:21 am ETUpdated
Feb 23, 2013

Self-publishing continues its exponential growth. More and more authors are choosing this route for presenting their work to the public, encouraged by impressive success stories, including accounts by bestselling writers who have moved over from traditional publishing to take advantage of greater profits and better control of their works.

But there is one domain that self-published authors rarely think about, which mainstream publishers have traditionally managed: legal issues.

If you self-publish, you are the publisher and thus assume all the legal responsibilities. At first this might seem frightening. But it doesn't have to be, as I discovered in my interview with Paul Rapp, an attorney who specializes in intellectual property rights in Monterey, Mass. and teaches Art & Entertainment Law and Copyright Law at Albany (N.Y.) Law School. He also discusses copyright issues in publishing on Vox Pop on Northeast Public Radio.

Rapp says he is working increasingly with self-publishers and self-published authors. He cited the prominent legal issues that authors should pay attention to: The use of images, quotes, and other materials from copyrighted works, the use of public domain works, the amount of a published works that can be quoted, portrayals of real people in fictional works, the standards for portraying famous and non-famous persons, portrayals of real people in non-fictional works, and the importance of copyright registration.

Starr: Isn't the provision of legal services an area where traditional publishing offers an edge to authors?

Rapp: The issues don't go away whether you are publishing traditionally or self-publishing. While the legal department of a publishing house may assess the legal issues in a work and advise, or demand changes if necessary, that doesn't release the author from responsibility. Every publishing agreement that I have ever seen has an indemnification clause in which the author agrees to hold the publisher harmless if there are claims against the publisher for any infringement or violation of personal rights. That being said, most publishers vet books before they go out and have insurance policies that cover most of these lawsuits; the insurers may also vet a manuscript prior to publication. But I think this is happening less and less, leaving the author exposed. And I'm seeing a lot of agreements that, particularly for non-fiction books, require the author, rather than the publisher, to get necessary permissions and licenses to use any third party material.

Starr: What advice do you have for self-publishing authors who have legal concerns?

Rapp: If authors have legal questions and want peace of mind they should get a legal opinion from an attorney. Because of the expansion of self-publishing there are an increasing number of lawyers who will assess legal issues in a book and tell you how to address the problems for a fairly nominal fee. For example, I just finished reading a book on branding. It took a couple of hours. Many lawyers will charge for how long it takes to read the book and prepare an "opinion of counsel" letter. Unless there is a huge systemic legal problem with the book, the letter should generally be one or two pages long. An opinion of counsel letter is a form of insurance; if an author is eventually found to have violated anyone's rights, an opinion of counsel letter can at least absolve the author of any claim of willfully violating those rights.

Starr: I have found that licensing fees are being charged that are not justified under copyright law for the use of public domain photos, artworks and other public domain works.

Rapp: Whether those demanding a fee for a public domain work believe it or not, they want you to believe they own a copyright that they don't own so they can exact a fee. Images or text in the public domain do not require permissions or licenses, period. And a mere photograph of a public domain work is itself in the public domain because there hasn't been anything significant added by the photographer to the original. And if an author receives a threatening letter about the use of a public domain work, it's because institutions know from experience that if they threaten, many people will pay up. Usually a brief letter from an attorney, or just ignoring the threat altogether if it's baldly frivolous, will be a proper response.

Starr: What about the use of quotes. Is there a limit to how many words you can quote? One editor told me that 300 words was the limit. Elsewhere I've read that it's related to the length of the work you are quoting from and the length of your book.

Rapp: There are no absolute rules like that and people always say there are. There is no fixed rule about the number of words. If the quote drives your narrative, or if you are commenting on the quote or its author, or using a quote to support an argument then it's most likely going to be a "fair use" of the quote, and therefore non-infringing. The publisher of the work you are quoting from may squawk, but it's highly unlikely that they are going to do anything about it. Some publishers have their own standards for how much an author can quote in a book they are publishing in order to somehow justify their own complaints about extensive quotes from their books in works put out by other publishers.

The one tricky area is when people use quotes that are just window dressing. Like when an author quotes the lyrics of a song -- even just couple of lines from a song at the beginning of a chapter, as Stephen King often does. Most music publishers take the position that you need permission because this kind of use, they claim, is not driving the narrative or otherwise a fair use. And they may be right -- the fair use doctrine is horribly imprecise. I've had authors ask me what to do. In those gray area cases, I suggest that they try to get permission. Often the licensing fee is fairly minimal -- although it depends on the song and the publisher.

I recently had an author who was putting out a self-published book that had a scene in a bar where a popular song was playing on the jukebox. He quoted the lyrics that were actually mirroring what was going on in the bar. It was really funny. And I said, that's fair use and you don't need permission because it's integral to the narrative of the work. The publisher might disagree but I say go ahead and use it.

Starr: If you don't get the permission and they come after you what will they demand?

Rapp: Most likely an after-the-fact license. In some cases they may demand the book be taken off the market, but most typically they'll be happy with a license. And again, in the situations I've outlined here, a license is not necessary, and their demands are bluffs.

Starr: The bar room story reminds me that I once wrote an article about "positive psychology." I used the lyrics from the famous song, "Accentuate the Positive," to show that the words expressed the entire philosophy of positive psychology. At the time it never occurred to me that there might be a legal issue.

Rapp: That's a classic example of fair use since the words are integral to the point you are making.

Starr: Whew. I'm glad you got me off the hook. Now to the sensitive issue of naming and portraying real people in fiction and non-fiction works.

Rapp: If the person is famous you can say pretty much whatever you want, particularly if it's an opinion; the first amendment protects your rights on that. If you state a fact you know is untrue, that may cause the famous person harm, and that most people will tend to believe, that's over the line. Now if it's a private person, someone who is not famous, and you write about that person by name and disclose things not known to the general public that might be embarrassing or might hold that person up to ridicule then you've infringed their privacy rights -- it's called the public disclosure of private facts.

This happens a lot in non-fiction books where the author portrays a non-famous person in a very unflattering way. Even if what the author says is true the person's privacy rights have been violated.

Starr: What if an author writes about a famous person's romantic or sexual affairs and offers analysis or diagnosis of the person's personality and motivations -- even suggesting psychopathology?

Rapp: Again, if it's a famous person and you are expressing your opinion and representing the truth fairly accurately, the first amendment would strongly protect your right to say what you want. The divide is famous vs. non-famous. And even if you make stuff up about a famous person, if it's not something that's believable you can do it. Hustler magazine ran a fake Campari ad featuring evangelical pastor Jerry Falwell talking about having sex with his mother in an outhouse. Falwell sued and the case went all the way to the Supreme Court, which ruled that since no reasonable person would believe the claims, Falwell had not been harmed. I have a client who just wrote a fake memoir of a famous rock star. Since the book will be marketed as a fake memoir, there is likewise nothing for the rock star to legitimately contest.

Starr: How important is registering a copyright?

Rapp: Prior to publication, it's a good idea to register the book with the federal Copyright Office. You own the copyright to the book as soon as you write it, but registration gives you greater protection and leverage should someone pirate your book

Starr: Thanks, Paul, for alerting authors to the critical legal issues in self-publishing. I trust that many will take your advice to obtain legal consultation, especially if they believe their works pose legal questions.